Somewhere in your iCloud account, you may have photos of your kids’ first steps, or the video from your wedding toast, or the last voicemail from a parent who has since passed. None of it exists on paper, or sits in a drawer where your family will find it. If something happened to you tomorrow, your loved ones might not even know how to prove that those photos belong to them, let alone how to get a company like Apple or Google to hand them over.
Losing these types of valuable assets, whether that value is monetary or sentimental, is avoidable. A well-drafted estate plan and a few concrete steps you can take today can prevent these memories from getting locked behind a login screen.
For most New Jersey residents, the answer to “could my executor get into my accounts” is no, at least not without a fight. Most people find this surprising. Digital assets have become one of the most valuable (and most overlooked) categories of property in an estate. This post walks through what New Jersey law actually says about digital assets, where the gaps are, and how a properly drafted estate plan can help.
What counts as a “digital asset”
In 2017, New Jersey adopted its version of the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) – quite a mouthful. This law defines a digital asset broadly, reaching far beyond what most people picture when they hear the term.
Under this law, digital assets include:
- Email, messaging, and social media accounts (Gmail, iCloud Mail, Facebook, Instagram, LinkedIn, etc.)
- Cloud storage and photo libraries (Google Photos, iCloud, Dropbox)
- Online financial accounts, PayPal and Venmo balances
- Cryptocurrency and NFTs held in exchange accounts or self-custody wallets
- Domain names, monetized websites, blogs, and ad-revenue accounts
- Loyalty points, airline miles, and gaming assets with real value
- Digital photos, videos, and documents that exist only in digital form
However, there is a difference between the digital record itself and the thing it represents. For example, RUFADAA may grant your executor the ability to log into your online banking, but the question of who gets those funds is still answered by your will, trust, and beneficiary designations.
Who’s in charge: the pecking order
New Jersey’s law sets up a hierarchy for who controls access to your digital assets after death or incapacity:
- The platform’s own online tool controls first. If a platform offers a built-in tool that lets you name someone to access your account and you use that tool, that designation wins. Most people have never touched these settings.
- Your will, trust, or power of attorney controls next. If you haven’t used the tool, or if the platform doesn’t offer one, your estate planning documents can grant your executor or agent access to your digital assets. Most New Jersey estate plans still leave this blank.
- The platform’s terms of service controls by default. If you’ve done neither of the above, the platform’s terms of service govern. Those terms are written to protect the platform, not your family. Many services default to treating accounts as non-transferable and communications as private, full stop.
Your silence about your digital assets is not neutral. It hands the decision to the big tech company’s terms of service, and those terms rarely provide a route for your family to gain access to your account.
Drafting for digital assets has to be specific
New Jersey’s RUFADAA distinguishes between two categories of digital assets:
- The content of electronic communications: the actual substance of your emails, texts, and DMs. Access to these require explicit consent in a will, trust, or power of attorney, or a court order, before the custodian will hand it over. General language granting “access to your accounts” is often not enough.
- The catalogue and other digital assets: a list of who you emailed and when, along with non-communication digital property. The bar for accessing these is lower, and can often be disclosed to your executor without that heightened consent.
These details are exactly why older wills, DIY documents, or documents that have generic “digital asset” boilerplate may not cut it. If your documents don’t specifically authorize your executor or agent to access the content of your communications, a custodian can lawfully refuse and can insist on a court order before disclosing anything.
What we recommend
For most New Jersey clients, a complete digital asset plan has a few concrete pieces:
- Explicit digital asset authority in the will, power of attorney, and trust (if applicable), giving the executor or agent authority to access the content of electronic communications if that is the client’s wish. Our modern, comprehensive estate plans include this by default. A DIY (or worse, AI-generated) document probably does not.
- Use of the built-in legacy tools that the major platforms offer:
- Keep a current, secure inventory of accounts separate from the will itself. Keep this updated as accounts change, and store it somewhere your executor can actually reach it when the time comes.
- Make a plan for any cryptocurrency or self-custodied assets. If your cryptocurrency is owned via commercial exchanges, your executor should be able to manage those assets as part of the probate process. However, if your crypto wallet is stored locally, make a plan ensure your executor knows of its existence and knows how to access it.
- Periodically review your plan.
We can help
Digital assets shouldn’t be an afterthought to an estate plan. For many people, they now represent significant financial and sentimental value. Let us help you navigate this complex area of estate planning. Our comprehensive estate plans include digital asset provisions which can be tailored to your specific needs and wishes.